Documentary Filmmakers' Statement of Best Practices in Fair Use

[Michael Wisniewski]

Very nice write up on the slippery subject of Fair Use, worth a read.
http://www.centerforsocialmedia.org/fairuse.htm

[Michael Wisniewski]

Nice, they also included real world examples of documentaries that use Fair Use effectively.

[Frank Moss]

this is one of the things i was looking for and never got a straight answer from any laywer, rights and permissions people or anyone else.
thank you you made my new year.

[Paul Tauger]

I want to caution everyone that, though I agree with both the rationale and the prospective analyses contained in this material, the "Best Practices" document is not the law, does not describe the current state of the law, nor is it citable as anything other than persuasive authority (meaning that it does not, in any way, bind a court). Of particular concern is the section that addresses incidental reproduction. Again, I agree with the rationale and the prospective analysis. It does not, however, represent the current state of the law -- there are very, very few decisions that address incidental reproduction, and the few that exist are in conflict. I believe the analysis provided in the "Best Practices" document is the correct one, and I'd hope that a court, reviewing a case involving such a situation, would agree. However, it is impossible to predict the outcome now based on the existing state of case law.

[Paul Tauger]

Okay, I went out for a cigarette and realized I had a little more to say on the subject:

The material's central premise is that fair use is intended as an exception to copyright for the purpose of allowing unauthorized quoting when there is a valid social or cultural purpose. Though, technically, this is not an inaccurate statement, it is somewhat misleading. There is an inherent tension between copyright, which provides absolute and exclusive control over copying of original works of authorship, and the First Amendment, which was designed to secure a free marketplace of ideas. This tension has been resolved in a variety of ways, e.g. making a distinction between ideas and their expression. Fair use has been another traditional tool for resolving this conflict. Thus, the central concern of the fair use doctrine is reconciling access to the marketplace of ideas with the exclusive rights over expression of those ideas. First Amendment jurisprudence has always extended maximum deference to "core value" speech, sometimes called "political speech," that covers the the gamut of political and social criticism. Other kinds of speech, e.g. commercial speech, is accorded less protection. Some kinds of speech, e.g. obscenity, are deemed "non-speech" and not protected at all.

The cited material seems to suggest that, if a documentary includes social or cultural criticism, it will be held to be fair use with respect to use of protected expression. This is, I think, over-stating the case. Fair use doctrine has, traditionally, been limited by niche doctrines that don't appear in the Section 107 codification of the statute. For example, though the statute contemplates educational use as fair use, in application, there are a number of criteria that must be satisfied, e.g. the educational use must be spontaneous, and the number of otherwise-infringing copies limited. Merely showing that an instance of unauthorized reproduction is "for educational purposes" is insufficient, and will result in copyright infringement liability if the non-statutory factors are not met.

Similarly, merely demonstrating that a documentary constitutes social or cultural criticism will not suffice to preclude infringement liability. The Best Practices document is a nice summary of some (but not all) of the non-statutory factors that go into making a fair use determination and, as I've indicated, in some cases represent a preference of copyright scholars and practioners, rather than an accurate statement of the current state of the law.

As another example, the Best Practices document talks about taking the minimum amount of the original necessary to support the social or cultural critique. This appears to be an extrapolation of the so-called "conjure up" test, which is unique to the parody fair use exception to infringement liability. The "conjure up" test requires that the parodist take no more than is necessary to "conjure up" the original. However, this (to my way of thinking) rather bizarre test was first annunciated in a case called Walt Disney v. Air Pirates and, in my opinion (and in the opinion of a lot of others), represented a non-articulated, but universally acknowledged, judicial gloss on copyright law that provides that "morally objectionable" material (but not legally obscene), will be less likely to be found as fair use. In the Air Pirates case, the parody was, without question, squarely within the boundaries of fair use, so the court devised this additional hurdle so that the defendants could be found infringing, nonetheless. The "conjure up" test, however, has become part of the jurisprudence of parody fair use doctrine, with the unwritten understanding that it is there to allow a judge enough wiggle room to find infringing what otherwise should be a fair use exception. The "conjure up" test has not, to my knowledge, been applied to any other use outside of parody. Traditional fair use analysis has always considered the amount and materiality of the unauthorized copying from the original. This factor does not necessarily consider whether the amount taken was necessary to support the alleged fair use, but rather, whether the amount copied represents a significant or material part of the original. For example, in Harper v. Nation, The Nation magazine incurred copyright infringement liability, and was denied a fair use defense, when it quoted a single paragraph from an advance review copy of a book -- the paragraph was held to be the central and most significant portion of the book (dealing, if I recall correctly, with Ford's pardon of Richard Nixon). I can easily imagine analogous situations that could occur in a documentary. The authors of the Best Practices document appear to have conflated this original fair use factor with the "conjure up" test to produce their recommendation regarding minimum copying. Though it's not bad advice, I don't think it's enough to ensure against incurring infringement lability.

Finally, bear in mind that the Best Practices document completely ignores trademark and other non-intellectual property legal concerns. While there is a fair use doctrine that applies to trademark, it is considerably less coherent (and not exactly analogous) to its copyright counterpart. Remember, too, that the Lanham Act prohibits dilution and tarnishment of trademarks. Documentarians who wish to critique specific businesses' practices must walk a very fine line to avoid running afoul of dilution and tarnishment prohibitions. And, of course, there are other concerns, e.g. defamation, both per se and false light, invasion of privacy, trespass, breach of license, etc.

Anyone planning to invest substantial time, resources and money in producing a documentary really should consult a lawyer who is very familiar with these areas of law.